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Thursday, December 14, 2006

Men without countries

Glenn Greenwald reviews the new Hamdan decision:

The first court decision (.pdf) to interpret and apply the legislative atrocity known as the "Military Commissions Act of 2006" was issued yesterday in the case of Hamdan v. Rumsfeld. The decision was a major victory for the Bush administration's attempt to vest the President with the power to imprison individuals -- even for life -- without according them any meaningful opportunity to contest the validity of their imprisonment.
The district court ruled that (1) the MCA successfully stripped federal courts of jurisdiction to hear habeas corpus petitions filed by "war on terrorism" detainees, and (2) under controlling Supreme Court precedent, "enemy aliens" who have no substantial connection to the U.S. (i.e., never resided inside the U.S.) have no constitutional right to seek habeas corpus review. As a result, the court dismissed the case of the Guantanamo detainee seeking habeas review here and, in essence, upheld the Bush administration's power to detain such "enemy combatants" forever while denying the detainees all access to our courts.

In a "real" war, no one would question the President's authority to hold enemy aliens without habeas review. Most wouldn't question if enemy aliens were summarily shot.

The war on terror is a different kettle of fish, the thinking goes, in large part because there is no defined end. Hostilities might continue forever, therefore detentions might well continue forever. And a person should have some right to prove his or her innocence before spending 70 years in a maximum security cell.

But -- and this is more question than answer -- doesn't the end of a "real" war expressly deal with prisoners? We can and in most cases should be undertaking those negotiations now. In some cases, I believe, we have returned enemy aliens to their native countries.

The trouble is this: while the detainees might have no rights here, they should have rights there. There in their countries of origin. We should return these detainees to their countries of origin as quickly as possible, so longer as U.S. interests are protected.

If, however, there is no country willing to stand up for the detainees and take possession of them, then they must be given fundamental rights in the United States, including the right to challenge their detention.